On September 10, 2014, Senior Deputy Commissioner of
Competition, Mergers, Lisa Campbell outlined the Competition
Bureau's (Bureau) international priorities and announced new
initiatives during a speech at the Global Antitrust Enforcement
Symposium at Georgetown University Law Center in Washington,
Collaboration with U.S. Agencies: Earlier this
year, the Competition Bureau and the U.S. antitrust agencies issued
a set of "Best Practices" for cooperation between
them in merger investigations. Senior Deputy Commissioner
Campbell's speech emphasized the enforcement successes that
this cooperation has delivered already, including coordinated
efforts to review a merger that the parties ultimately abandoned
following concerns raised by both the Bureau and the U.S.
Department of Justice.
Engaging Other Agencies: For several years the
Bureau has been heavily involved in promoting international
cooperation with agencies in countries with emerging economies.
Senior Deputy Commissioner Campbell noted new efforts the Bureau is
making in this regard, including engagement with Chinese agencies
to facilitate merger reviews involving state-owned enterprises and
upcoming engagement between the Bureau and the Competition
Commission of India.
Upcoming Bureau Innovation Workshop: The
Bureau is increasing its focus on the role of innovation in
competition, including a review of its Intellectual Property
Enforcement Guidelines. Senior Deputy Commissioner Campbell
announced that the Bureau would host a workshop to discuss the role
of innovation in antitrust on November 4, 2014 in Ottawa.
More insight into these topics will likely emerge next week as
Senior Deputy Commissioner Campbell participates on a panel
discussing agency coordination in global mergers at the Fall
Competition Law Conference of the Canadian Bar Association's
National Competition Law Section. Brian Facey, Chair of the Blakes
Competition, Antitrust & Foreign Investment group, will
moderate that panel.
TRIBUNAL DECISION CLARIFIES THIRD-PARTY CHALLENGE RIGHTS
On September 8, 2014 the Canadian Competition Tribunal
(Tribunal) released a decision in Kobo Inc. v. The Commissioner of
Competition. The case involves an application by a third
party to set aside a consent agreement entered into by the
Commissioner of Competition (Commissioner) and four investigated
parties in resolution of the parties' alleged anticompetitive
conduct under section 90.1 of the Competition Act (Act),
which deals with non-criminal agreements between competitors. The
Tribunal held that its jurisdiction to consider a third-party
challenge to a consent agreement was limited to inquiring:
Whether the terms of a consent agreement are within the scope
of the type of order that the Tribunal is permitted to issue
Whether a consent agreement identifies (a) each of the
substantive elements of the civil provision in question and (b)
contains (i) an agreement that each element has been met or (ii) a
statement that the Commissioner has concluded that each element has
been met and that the investigated party does not contest the
conclusion. The Tribunal held that withholding such information
"would potentially undermine public confidence in the
administration and enforcement of the Act."
Whether the terms of the consent agreement are unenforceable or
would lead to no enforceable obligation, for example, because they
are too vague
The Tribunal held that "it is not open to [a third-party]
applicant . . . to attempt to establish that one or more of the
substantive elements of a [civil provision of the Act] have not in
fact been met, or that a defence or exception set forth in the Act
In its decision, the Tribunal has given significant deference to
the Commissioner to resolve alleged contraventions of the civil
provisions of the Act by way of a consent agreement. Parties that
resolve investigations by the Commissioner under a consent
agreement are less likely to face challenge by a third party
provided that the consent agreement meets the above criteria. Given
that the above criteria require that reference be made to Bureau
findings about the elements of the provision of the Act, this may
have consequences for parties that are exposed to private actions
in connection with their conduct. Tribunal decisions can be
appealed to the Federal Court of Appeal.
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